Mst. Gulab Bai vs Manphool Bai

The appellant's argument is that in construing the clause "in a Court competent to try such subsequent suit or the suit in which issue has been subsequently raised" it would be relevant to remember that this clause is really intended to emphasise the consideration that the Court which tried the earlier suit and the Court in which the subsequent suit is filed should be Courts of concurrent jurisdiction, and the concurrence of jurisdiction should be tested by reference to the matter in issue which has been tried in the earlier suit and which also falls to be decided in the subsequent suit. In support of this argument reliance has been placed on the classical statement of the general principle , of res judicata 490 enunciated in the Duchess of Kingston's case(1). In that case it was observed that from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true : "'First, that ;the judgment of a Court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question, in another Court, secondly, that the judgment of a Court of exclusive jurisdiction, directly upon the point, is in like manner conclusive 'upon the same !matter, between the same parties, coming incidentally in question in another Court for a different purpose". The basis of the rule of res judicata is that an individual should not be vexed twice for the same cause, and the liberal construction of the word ,suit" would be consistent with this basis, otherwise if the competence of the earlier Court is going to be judged by reference to its competence to try the entire suit as subsequently instituted, in many cases where the matter directly and substantially in issue has been tried between the parties by the earlier Court it may have to be tried again in a subsequent suit because the earlier Court had no jurisdiction to try the :subsequent suit having regard to its pecuniary jurisdiction. That, it is urged, would be anomalous and inconsistent with the principle underlying the doctrine of res judicata.

The word ,,suit" has not been defined in the Code, but there can be little doubt that in the context the plain and grammatical meaning of the word would include the whole of the suit and not a part of the suit, so that giving the word "suit" its ordinary meaning it would be difficult to accept the argument that a part of the suit or an issue in a suit is intended to be covered by the said word in the material clause. The argument that there should be finality of decisions and that a person (1) 2 Smith Lead. Cas., 13th ,Ed., pp. 644, 645.

491 should not be vexed twice over with the same cause can have no material bearing on the construction of the word ,'suit". Besides if considerations of anomaly are relevant it may be urged in support of the literal construction of the word ,,,suit" that the finding recorded on a material issue by the Court of the lowest jurisdiction is intended not to bar the trial of the same issue in a subsequent suit filed before a Court of unlimited jurisdiction. To hold otherwise would itself introduce another kind of anomaly. Therefore, it seems to us that as a matter of construction the suggestion that the word "suit" should be liberally construed cannot be accepted. This position would be abundantly clear if we consider the legislative history and background of s. 11.

In that connection it would be relevant to cite the material provisions in regard to res judicata contained in the earlier Codes. Section 2 which dealt with res judicata in the Code of 1859 (Act VIII of 1859) read thus :

"The Civil Courts shall not take cognisance of any suit brought on a cause of action which shall have been heard and determined by a Court of competent jurisdiction in a former suit between the same parties or between parties under whom they claim."

In the Code of 1877 (Act X of 1877) s. 13 provided;that "no Court shall try any suit or issue in which the matter directly and substantially in issue has been heard and finally decided by a Court of competent jurisdiction, in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title".

Then followed the Code of 1882 (Act XIV of'1882) in. which s. 13 dealt with the principle of res judicata. Section 13 is substantially in the same terms as s. 1 1 of the present Code of 1908 (Act V of 1908).

492 The question about the construction of the word "competent jurisdiction" occurring in s.2. of the Code of 1869 as well as s. 13. of the Code of 1877 fell to be considered in Misir Raghobardial, V. Rajah Sheo Baksh Singh (1). In that case the Privy Council took the view that the expression "competent jurisdiction" must be taken to mean competent jurisdiction as regards the pecuniary limit as well as the subject-matter, and they pointed out that if the pecuniary limit of jurisdiction was ignored it would lead to the anomalous consequence that ",the decision of a Munsiff upon (for instance) the validity of a will, or of an adoption, in a suit for a small portion of the property affected by it, should be conclusive in a suit before a District Judge or in the High Court, for property of a large amount, the title to which might depend upon the will or the adoption". The judgment further pointed out that "in India there are a large number of Courts, and the one main feature in the Act constituting them is that they are of various grades with different pecuniary limits of jurisdiction; and that by the Code of Procedure a suit must be instituted in the Court of the lowest grade competent to try it". That being so, unless the concept of competent jurisdiction included con- siderations of pecuniary jurisdiction of the Court it would inevitably mean that a finding recorded by a Court of the lowest pecuniary jurisdiction on an issue arising in a suit before it would bind the parties in a subsequent suit where the claim involved may be very much higher. It would thus be seen that in dealing with s. 2 of the Code of 1859 the Privy Council. introduced the notion of concurrent jurisdiction though the words used in the section were a Court of competent jurisdiction, and it was held that the jurisdiction must be concurrent as regards the pecuniary limit as well as the subject-matter. This decision proceeded on the assumption that "in order to (1) (1882) L. R. 9 I. A. 197.

493 make the decision of one Court, final and conclusive in another Court, it must be a decision of a Court which would have had jurisdiction over the matter in the subsequent suit in which the first decision is. given in evidence as conclusive" (vide : Mussamut Edun v. Mussamut Bechun(1)], Heaving thus interpreted the expression "competent jurisdiction" the Privy Council proceeded to consider whether any change in the; low was intended to be effected by a. 13 of the Code of 1877 ;,and they observed that the intention of the said section ,,,,seems to have been to embody in the Code of Procedure by es. 1,2 and 13 the law then in force in India instead of the imperfect provision in s. 2 of, the Code of 1859" and they added that "as the words in the section do not clearly show an intention to. alter the law their Lordships do not think it right to put a construction upon them which would cause an alteration." It would thus be seen that this decision in an authority for the proposition that the rule of res judicata as interpreted even under the Code of 1877 was held to be the same as it obtained under the Code of 1859 as interpreted by the Privy Counsel I in the light of the general considerations as to res judicata enunciated in the case of Duchess of Kingston (2). , This position has been clearly stated in another decision of the Privy Council in Gokul Mandar v. Pudmanund Singh (3). On this occasion the Privy Council had to consider the effect of is. 13 of the Code of 1882. The argument which was urged before the Privy Council on' s. 13 was that "a decree in a previous suit cannot be pleaded a res judicata in a subsequent suit unless the judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised", and in upholding this argument their Lordships observed that ,in this respect (1) 8 W.R. 175.

(2) 2 Smith Lead. Cas. 13th Ed., pp. 644, 645. (3) (1902) I. L. R. 29 Cal, 707.

494 the enactment goes beyond s. 13 of the previous Act X of 1877,and, also, as appears to their Lordships, beyond the law laid, down by the judges in the Duchess of Kingston's case (1)". In other words, this decision would show that even though in the earlier Codes there may have been some doubt about the test of competent jurisdiction which has to be applied to the Court which tried the earlier suit, the position under the Code of 1882 is absolutely clear. The question to be asked under s. 13 of the said Code is : could the Court which tried the earlier suit have tried the subsequent suit if it had been then filed ? In other words, it is the whole of the suit which should be within the competence of the Court at the earlier time and not a part of it. Having regard to this legislative background of s. 11 we feel no hesitation in holding that the word "suit" in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in it.

Several decisions have been cited before us where this question has been considered. We do not think any useful purpose would be served by referring, to them. It may be enough to state that in a large majority of decisions the word "suit" has been literally construed [vide : Ram Dayal v. Jankidas (2) and Shibo Raut v. Baban Raut (3)] though in some cases and under special circumstances a liberal construction has been accepted [vide : Sheikh Maqsood Ali V. H. Hunter (4)]. We must accordingly hold that the High Court was right in coming to the conclusion that the present suit is not barred by res judicata.

That takes us to the question of the construction of the rent note. The High Court has, held (1) 2 Smith Lead. Cas. 13th Ed., pp. 644, 645. (2) (1900) 1. L. R. 24 Bom 456.

(3) (1903) I.L.R. 35 Cal. 353.

(4) A.I.R. 1943 Oudh. 338.

495 that on a fair and reasonable construction of document it must be. held that the rent not has been passed by appellant 2 in favour of the respondent alone though incidentally out of respect ,the name of appellant I has been introduced in it. In our opinion this conclusion is right. it is true that the rent note has been executed in favour of both appellant and the respondent but, it is significant that the rent note stipulates that when the rent is paid by appellant 2 he has to obtain, a receipt from the owner. The word "'owner" is' used in singular and not plural and that indicates that the rent note proceeded on the assumption that the property which was the subject- matter of the rent note belonged to one owner and not two. There is another clause in the rent note which is clearer still. This clause reads ',therefore, I have executed in my proper senses this rent note on a stamped paper valued Rs. 51- in the names of each of the two, mother-in-law and the daughterin-law, Sethanji Gulab Bai widow of Phoolchandji in the capacity of being elder in the family and Sethanji Manphool Bai ajias Bhanwar Bai widow of Lalchandji the heir in the family and the owner of the property which will stand and may be used in times of need." This clause makes it perfectly clear that the inclusion of the name of appellant', was merely formal and it was intended to ,-how respect to the elderly lady in the family. It also shows that the respondent was treated as the owner of the property as the heir of her deceased husband Lal Chand. Reading this clause together with the earlier clause as to the receipt for the payment of rent which we hive already considered it is absolutely clear that the name of appellant I was not included in the rent note because she had any right to the property let out but solely as a matter of respect which the respondent showed to appellant I Therefore, in our opinion, the contention that the rent note has been passed by 496 appellant 2 favour of the respondent and ,appellant 1 cannot be sustained. If that be the true position there can be no doubt whatever that appellant 2 is precluded from, disputing the title of the'respondent "in the present. proceedings. As the High Court has pointed out the sequence of events leading to the execution of the suit rent note unambiguously shows that appellant 2 has recognised the respondent as the lessor and as such the principles of s. 116 of the Evidence Act clearly apply.

The result is the appeal fails and is. dismissed with costs.

Appeal dismissed.

497